Rob Douglas: A drop of justice for an unjust system

“For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair. These older, stringent punishments that are out of line with sentences imposed under today's laws erode people’s confidence in our criminal justice system.”

— U.S. Deputy Attorney General James Cole

Rob Douglas

Rob Douglas' column appears Fridays in the Steamboat Today. He can be reached at rdouglas@SteamboatToday.com.

With those words on Wednesday, President Barack Obama’s administration initiated a new clemency process to re-examine the federal prison sentences of nonviolent criminal offenders.

While long overdue and far short of the complete overhaul needed to instill fairness in federal sentencing guidelines that almost universally are viewed as inequitable and overly punitive, Obama’s clemency initiative promises to inject a drop of actual justice into a badly broken federal criminal justice system that currently incarcerates more than 200,000 Americans.

As the Washington Post reported Wednesday:

“An Obama administration initiative to encourage nonviolent drug offenders in federal prison to seek clemency is likely to trigger tens of thousands of petitions, and the government could be processing applications for the next three years, according to lawyers and civil rights activists. …

“The initiative is part of an effort to reduce the prison population and end disparities in drug sentencing that, for instance, led those trafficking in crack cocaine to receive much longer sentences than people dealing the same substance in powder form.”

According to Cole’s announcement, a federal prison inmate will have to meet six criteria to be eligible for the clemency initiative. And while the new process is largely aimed at freeing a subset of those serving extremely long prison sentences for nonviolent drug offenses, it’s important to note that the initiative is not restricted to drug crimes.

“They must be inmates who are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today; are non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; have served at least 10 years of their sentence; do not have a significant criminal history; have demonstrated good conduct in prison; and have no history of violence before or during their current term of imprisonment.”

While the announced changes to the federal system are not without controversy — ideally, the potential release of thousands of prisoners should come from congressional legislation instead of the president’s constitutional pardon power — the clemency initiative is a good, albeit small, step toward equity in federal sentencing.

Additionally, the initiative could serve as a model for states that slowly are realizing that incarcerating nonviolent offenders is inhumane and a waste of money.

For 30 years, I had a front-row seat to the U.S. criminal justice system. Throughout the course of a multifaceted career, I investigated, arrested, prosecuted and defended individuals involved in crimes from petty to heinous. In short, I participated in the system in almost every possible capacity.

I started out thinking that — while the criminal justice system is flawed in the way every human undertaking is — constitutional and legal safeguards would ensure that only the guilty ultimately are convicted, and that convicts would receive fair punishment. I quickly learned the system routinely arrests the innocent, convicts defendants of crimes they did not commit, and imposes draconian sentences on nonviolent offenders that leave little chance of them becoming productive members of society.

And while it is also true that the guilty often are not arrested or appropriately punished, William Blackstone, the English jurist, was correct when he said in 1765, “It is better that 10 guilty persons escape than that one innocent suffer.”

Indeed, Blackstone’s admonition, which can be traced back to the book of Genesis in the Bible, is the cornerstone of the Bill of Rights that includes the Eighth Amendment prohibition against “cruel and unusual punishment.”

And if putting an individual convicted of a nonviolent crime in a cage for more than 10 years isn’t cruel, than perhaps it’s time to redefine the word.

Comments

One thing our legal system does is provide work for lawyers and they are adept at milking the system. Be it civil or criminal, justice is out of reach for most because of the cost. Bureaucrats ride tall in the saddle because the system is free to them. Generally speaking in civil matters it is only the foolish that see court as the solution.

Amen. The "justice" system is a giant game, invented by lawyers, with rules made by lawyers, with the prime objective being lining the pockets of lawyers and judges. The next step up on this gravy train is to become a politician which are mostly lawyers. Only the most adept liars among lawyers are qualified to become politicians.

Rob brings up some good points. Years ago my uncle, a judge, told me that justice does not exist in our system. Daily one can see the truth in that statement. Concurrent sentences make a mockery of justice. A 10 yr senence should mean 10 yrs period. A deterrant should be a deterrant. Minor offenses should exclude jail time in most cases. Fines should be collected within 60 days of sentencing. The list is too long to place here plus I don't have the days it would take to write it..